Sunday, March 4, 2012

Florida Legislative Law of Absolutes: If there’s a way to avoid doing the right thing, it will be made legal

If we assume water management as we know it today, began with the Water Resources Act of 1972, then it’s been around for about 40 years.
A lot of things have happened along the way...
Jake Varn got me into the water management business when he introduced me to Dale Twachtmann in 1971. Dale Twachtmann taught me about Florida’s fragile water resources by letting me read all the technical reports in SWFWMD’s library I could stand. Buddy Blain taught me about the other-worldliness of Tallahassee’s methane-filled politics by letting me traipse around the capitol behind him as he pushed for funding to buy land needed for the Four Rivers Basins Federal Flood Control Project and implementing the brand new Water Resources Act. Don Feaster taught me how SWFWMD functioned by letting me help develop new policies and strategies for managing the district’s administrative systems and provide administrative support for the district’s eight local basin boards. Derrill McAteer taught me how to, never under any circumstance, let them see you sweat when dealing with the very powerful, from the movers and shakers in Tampa and Tallahassee to inside the beltway at the nation’s capital.
So much has happened...
Rachel Carson wrote her book, Silent Spring, in 1962 and the country’s environmental conscience was stirred.
By the 70’s, it was in full swing.  Many laws were passed in recognition of the fact that, as a country, we were ravaging much of our most valuable resources and dangerously fouling our own nest.
In the early 70’s, Charles Reich wrote The Greening of America … and a terrible national mistake was brought to an embarrassing end after the loss of over 58,000 lives of our country’s finest and brightest young men and women.
So much has happened...
After Vietnam, our national attention, no longer distracted by the horror of war every evening on the 6:00 o’clock news, was finally able to focus upon fixing some of the country’s problems within its own shores.
In Florida, we passed legislation that would be historic.
The Water Resources Act, which focused on management of the state’s fragile and finite water resources was certainly one, but there were others.
Clean air, hazardous wastes, toxic pollutants, acid rain, endangered species, wetlands protection and land planning were just a few.
After the Water Resources Act, probably the most important legislation that followed in Florida, from the water management perspective, was the Warren S. Henderson Wetlands Protection Act of 1984.
The Act was historic because we decided that we were not going allow dredging and filling without constraint … anytime … anywhere … any more. 
But, this is Florida.  Dredging and filling is part of the state’s DNA, a publically and politically sanctioned activity for over a hundred years.  We gave Hamilton Disston four million acres for only 25 cents an acre to dredge and fill from Lake Okeechobee to Ft. Myers. 
But after Warren S. Henderson, one would need to have permission, and it’d have to come from the government.
So, the Department of Environmental Regulation - DER at the time - devised the Wetlands Resource Permitting Program and promptly delegated it to the water management districts.
Why did the state choose to delegate this costly and controversial undertaking to the water districts?
Because it would be a costly and controversial undertaking.
Implementing the Act would require hiring and housing hundreds of new employees, mostly professionals, engineers, hydrologists, biologist, lawyers etc., etc., and millions of dollars.
It would require having to develop appropriate rules and defend them in court from numerous industries that would be heavily impacted … and highly incensed. 
Fortunately, the districts had the constitutional authority, affirmed by referendum in 1976, to levy a property tax, not to exceed one mill, for water management purposes.
And, shrewdly, not wanting to take the political heat to pay for the program, the legislature simply directed DER to delegate the responsibility to the water management districts.
Meanwhile, developers wailed about how much waterfront property would be lost, and how much perfectly good coastal marsh would now be off limits! 
So the districts took the responsibility, and the heat and criticism … some of it coming from the very legislators who gave them the delegation in the first place … which was intense.
It was left up them to levy the taxes to raise millions of dollars needed to fund the program and build the offices to house the necessary staff.  As a result, though, thousands of acres of coastal marshes, riverine wetlands and swamps – Florida’s virtual heart and soul - were saved from the dredge.  Without these unique and sensitive natural systems, Florida would not be Florida.
Thank goodness the districts were there to take it all on, because the state is so much better for it today.
So much has happened...
In the 70’s, when the districts realized they were going to be issuing consumptive use permits for water use - per Dean Maloney’s Model Water Code, which by now had become law - they realized they needed to figure out how to go about doing it quickly, and it would have to be from scratch.  In a legal context, it had not been done anywhere else in the world.  There simply was no recipe to follow.
Already, salt water was advancing toward and even disrupting public supply well fields. Lakes and wetlands were shrinking and being reduced to brown organic dust due to well field overpumping. Residential wells were going dry. Lakes and rivers were experiencing historic lows and affected riparian owners were getting angry.
The din of dissatisfaction from everyone affected by the massive pumping and destruction of property was rising.  Farmers were becoming afraid the water they needed would be targeted by urban areas, or the mining industry, or power companies.  Clearly, one’s right to access and use water had to be protected, and developing a politically acceptable and hydrologically sustainable way to do it was the challenge.
Again, the districts found the way.  Not the most popular way, perhaps, but the fairest and most legally defensible way, in my opinion, as court precedent has proved.
There isn’t enough space here to relate all the things water management districts have achieved for this state. Nevertheless, I can suggest without reservation that it is far more than the original writers of the Water Resource Act ever considered possible.
So, what’s happening now?
Simply put, the institution of water management and, by extension, the concept of environmental protection in the State of Florida, in place for 40 years and respected around the world, is under siege.
The attack has been so vicious, one would think even the current economic recession - global in scale - is the result of a water management conspiracy against all that’s good in America.
If we are to believe what’s coming out of the governor’s office and from a host of cynical and misinformed, if not completely ignorant, legislators, water managers have been grossly wasteful, guilty of fostering indefensible bureaucratic growth, arrogant, dictatorial, insensitive, offensive, biased, untrustworthy, hoarding public money, overpaid, feeding from the public trough, and treating the regulated public as “the enemy” (as lawyer Doug Manson has been quoted as saying.  Manson was chair of the Scott transition team sub-committee on Regulation).
Consequently, we are being lead to believe that:
It is because of the water management districts that the employment rate in Florida is among the highest in the nation.
It is because of the water management districts that every shopping mall and city has too many locked and vacant store fronts.
It is because of the water management districts that there are 1.5 million vacant houses in Florida, one million houses actually under construction today and 3 billion square feet of vacant commercial space - the equivalent of 300 malls. 

It is because of the water management districts that The Everglades has not yet been restored. 
It is because of the water management districts that Polk County has used all its available groundwater and now has a 30 mgd projected water supply deficit by 2030 with no alternative supplies available locally.
It is because of the water management districts that the City of Tampa felt compelled to seek fundamental changes to Florida water law because they were afraid they would be required to actually do something purposeful with the 50 million gallons of highly treated reclaimed water they have been dumping into Tampa Bay each and every day for some 30 years.
It is because of the water management districts that a cattleman can’t string a fence across the Kissimmee River to keep out those dangerous and undesirable kayakers and fishermen,
It is because of the water management districts that a phosphate company can’t dam up the Peace River so it can get at that valuable ore that lies right there under the bottom of the river and beneath those useless adjacent wetlands and swamps.
“So,” legislators thus pondered, “What can we do to get our country back from those who would destroy our way of life because they reject the Norquist standard of conservative morality and reek of obnoxious moderation?”
So much is happening...
The governor is being told and is clearly convinced that the districts are the scourges of the jobless in Florida.  Thus, he has determined they must be neutered lest they infect intergalactic space as well. So repulsed was he after hearing they had the gall to seek guidance and control of property taxes through local basin boards, that he had the governing board fire them all.  Then he developed a plan.
After we do away with those ill-conceived basin boards that stand in the way of Alexander’s water project, we’ll appoint some new governing board members, he declared. 
We’ll make sure they’re permit holders. Tea-Partiers.  People who know water, he grimaced, while shaking his fist at the thought of a crystal clear first-magnitude spring flowing freely and unbottled to the Gulf. 
Have them question everything.  Don’t be distracted by facts. It’s okay to be offensive, indignant, and unreasonable. Change everything.  Screw the consequences. Just keep saying, “Change is good.”
Then let’s cut their staffs.   Start at the top.  They make too much money; been there too long; know too much.  We’ll replace them with our own cheap people.
Institutional knowledge is evil, he announced on the steps of the SFWMD headquarters as hundreds of governmental low-life were let out the back door.
After our cheap guys are on board, we'll fire a bunch more.  Scare the crap out of them.  Make them paranoid and afraid who might be next. Reduce benefits. Make them urinate into a cup and have it analyzed for liberal tendencies. Destroy all that excessive morale.  These people are bureaucrats. Get control!
Then, reorganize, and fire some more. 
Keep saying, “We have to get the water right,” and, “Core mission.” 
In fact, send out a policy! 
All future communications from DEP or any water district must refer to “getting the water right” and “getting back to our core mission,” … or risk termination. 
It does not have to make sense.  Keep them confused.  These people are bureaucrats! 
Then, sell some of that awful swamp land they own because,
We need to make some Money. Cut taxes!
If you can’t sell it, make a campground out of it.  Park some of those humongous 45-foot mothers in there. 
Make some money. Cut taxes!
And put some coke machines and signs along those excessively long trails in all those woods they own.  It gets hot out there!
Make some money. Cut Taxes!
So much is happening...
JD Alexander became so excited when he heard the governor mention cutting district taxes last year, he adopted SB 2142 by decree and handed district taxing authority over to his budget review commission.  He then declared governing boards to be, henceforth, irrelevant.
“We know how to manage water. We’re legislators!” he mused, “... and  besides, Polk needs some real bad.  So this is good.”
So much is happening; it’s hard to imagine what will happen next.
So much can happen...
Here’s what will probably happen if we stay the course the legislature has set for us.
All control of water will be shifted to Tallahassee and governing boards will become less meaningful than breasts on a boar hog.
There will be another run by the Committee of 100 to create a state-wide water board.  There’s a lot of cheap water in the Suwannee River and all those springs up and down the gulf coast.  All one needs to do is dig a big ditch and it’ll just run downhill by gravity to where it’s needed in all those thirsty counties to the south.  They need to be thirsty up there like we’re thirsty down here.
There will be another run by the City of Tampa to have reclaimed water removed from the state’s statutory definition of water.  This time with the phosphate companies, power companies, and big ag – all those guys that re-circulate water – in strong support, so they can sell their “statutorily undefined” stuff to the highest bidder.
This will lead to all water becoming a commodity that can be sold at the highest cost to those who need it most.  Then, all water that can be withdrawn from any water body without exceeding its minimum flow and level can then also be sold to the highest bidder.  That way, we can make some money.  Cut taxes!
So much can happen...
There will be a marketing campaign to all zoos and countries with rare and endangered species to let them know their ungulates are welcome in Florida.  The state has spent 20 years and over 6 billion dollars buying land for these poor hapless animals.
Florida would make them an excellent home, according to Tampa’s Lowery Park Zoo and Representative Shawn Harrison of Tampa who introduced the bill that will allow it.  The state, for example, already has a wild macaque monkey living in a back yard in Pinellas County.  There’s a whole tribe of them swinging through the trees over the Silver River.  The River of Grass is swimming with those beautiful big snakes that love to hug you to death.  There are as many Armadillos already here as there are walking catfish; you know, ubiquitous, like everywhere. We even have this giant cane toad running around south Florida as well as a Gambian Pouch Rat that’s the size of a raccoon. Those guys love Florida!  Like love bugs! Come on down!
We need to do this!  Make some money. Cut taxes!
So much can happen...
JD Alexander will likely have to be treated for manic depression.  With the governor’s help, he cut SWFWMD’s taxing authority in such haste he neglected to consider the consequences.  Seems the district now won’t be able to pay it’s half of the $330,000,000 water project so urgently needed by Polk County for its future growth.
In the entirely forgettable words of the inimitable Rick Perry, “Oops.”
In all fairness, JD’s now trying to undo this tragicomedy with his SB 1834, which became PCB 7092, which is now SB 1986, which he had pulled from unfriendly committees sensing it might not be approved, and which is now being discussed by the Conference Committee, which meets behind closed doors, where the public is neither welcomed nor allowed.
Nevertheless … when this bill becomes law, there will be a lawsuit accusing the state of levying an ad valorem tax which is prohibited by Florida’s Constitution.  The legislature will lose the lawsuit and the districts will not only be declared state agencies but they will be required to reimburse all property tax dollars collected since SB 2142 was passed last year.
Once the water management districts officially become state agencies, the legislature will then cut taxes some more.  They will then declare they have no money to support water management in the state at all, summarily abolish the districts, repeal all job-killing, regressive environmental laws and declare that State of Florida is for sale to the highest bidder, so we can … Make some money.  Cut taxes!
That’s when SWFWMD will not matter whatsoever any longer, I’ll quit blogging, and take the next boat to Costa Rica
Soon after that… maybe … Rachel Carson’s book will undergo its 20th reprinting.
Maybe Florida’s dormant environmental conscience might once again be stirred.
Maybe Dean Maloney’s grandson will find an original hand written version of his Model Water Code.
And the legislature might experience a revelation … and pass a Water Resources Act II.

... but I wouldn't count on it.
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Remember: The Florida Legislative Law of Absolutes:  If there’s a way to avoid doing the right thing, it will be made legal.

18 comments:

  1. It’s always been my understanding that WMDs did not have the authority to levy ad valorem taxes until the Legislature granted them that authority. This was done when it established by law that Districts could levy ad valorem taxes up to a maximum mileage rate specified by the Legislature for each District. I would think that’s one of the more important things worth mentioning that happened along the way…

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    1. You’re right. The amendment was not self-executing, requiring the legislature to authorize it which it did with appropriate limitations, e.g., the millage caps. However, when the legislature applies such limitations, it must do so within limitations the constitution also placed upon the legislature, not the least of which is the prohibition against the state levying an ad valorem tax. I believe a compelling argument can be made that the excessive degree to which the legislature is controlling the district budgets, vis-à-vis SB 2142 of last year and SB 1986 this year (so far), trips that constitutional prohibition and creates a liability that puts both the state and its natural resource management at significant risk … needlessly.

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  2. Wow.......don’t know what to say other than you have nailed it and thanks. A shortened version of this would be good to send to editorial boards after the session. I was thinking of writing a summary of what these guys have done to Florida, but I think this does it. I think the most important thing is to name names, less we ever forget who screwed water management in Florida. I still want to scream!

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  3. Wonderful! Your outstanding historical rant has constructively interrupted the progress of my emotional detachment from Florida and my mental journey to Costa Rica, the Bahamas, or somewhere, anywhere! I’ve promised myself to do nothing until the session ends and the extent of the damage can be fully appreciated. Keep up the good work. Right now I’m going to retreat to the spring woods to look for turkeys and consider escape routes and destinations.

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  4. I sure as hell hope you are a registered Democrat. If not? Change your party! Even my mother in her infinite wisdom sees the absurdity here. These people in Tallahassee are millionaires (or aspiring to be) and they believe, big, unbridled business, is the answer. I believe their agenda is all about making those with the power to make change, to make change in their favor. JDA is a perfect example. This man is on steroids to improve his financial worth. It's not rocket science. What is unfortunate is the majority of registered voters in this State are unattached. They only see the issues that affect them directly. The more I rant, the more p----- off I get. And so it goe.

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    1. Sandspur is a registered Republican, but the GOP is not the grand party it once was. Hijacked by the Tea-Partiers and the lemming-like followers of hate-monger Rush Limbaugh, the Party is self-destructing because it is alienating its strongest group of supporters, the middle class. It is incredible to contemplate that, in actuality, the GOP party majority has declared war upon itself and ... apparently ... women. Unbelievable.

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  5. You need a bit of a rest!! You are right on every point, but you will kill yourself worrying about it...

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  6. You ought to frame this in something elegant, put it in a beautiful package, and send it to the Governor!!!

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  7. ... that was fantastic with lots of thought; it was nostalgic and chilling at the same time. As to predictions, I think you are closer to right than wrong.

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  8. This is scary ... and it is happening right before our eyes.

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  9. ... I can only hope the people can apply the pressure needed to stop this. This is alarming and going on in many areas of regulation and oversight that is necessary for Florida and all Floridians to stay healthy. The elected corrupt that sell us all out, are finally getting their way.

    The enviro groups are almost neutered, and without money. The media is all but gone. The people are brainwashed with partisan BS politics, and are hypnotized /tranquilized with stupid reality shows and I am not certain they will show up in droves to kick out of office the arrogant elected that have sold them out.

    I think it takes a large large effort by many groups putting their certain differences aside and fighting tooth and nail that the peoples process stop and listen. Short of that, I see devastation on its way. What can I do to help?

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  10. Wow! Wonderfully written. I learned more in these few minutes of reading than I have ever known about past and current Florida water management issues. You should do this more often! ... may suggest toning it down a bit. I understand the source of your anger. If published? It may make you appear as a ranter rather than a credible source. Just a suggestion. You are the premier credible source regarding this issue in my opinion.

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  11. ... you're right on target. The J. D.'s and legislatures don't get it. They are killing what's good about this state. I loved working the Swfwmd and it's professionals. Thank you!

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  12. Having worked for the Water Management District for 19 years in the Regulatory Division for 18 of those years it was Mr. Alexander that call and threatened District staff. He would tell Sr. Management that a certain issue should be made to "Go Away" if the District wanted to make sure the budget for the following FY was to be approved. I appreciate the District and all that it stands for. The NeoConservative lie that Regulatory Agencies like DEP, EPA and the District are somehow responsible for impeding the economy and getting people back to work is an effective myth for them at this time. It has been my experience that these same people want less government, of course until it affects them. Please remember these "Environmental Terrorist" at election time, Florida is to fragile not to.

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  13. SWFWMD needs to be dissolved. I have watched lakes everywhere disappear since I was a child. The honest truth is there is no hope for Florida to remain the lush wet landscape it once was. The only way to reverse the environmental damages occurring in Florida would be a MAJOR PLAGUE to cut the population. Everyone (especially those employed by SWFWMD) is too afraid to admit this is all a losing battle. Just use Google Earth and look at the old waterlines of the lakes and ponds. If they still have water they are half of what they were 30 years ago. As Florida's population keeps rising the water tables will keep lowering , and nothing will reverse the trend EVER. SWFWMD is the biggest waste of money in the United States.

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  14. I just received my Villages water bill. In the FINE print it states that a 10% water rate surcharge has been added to all water bills beginning 3/10/12. If this tax is from the FIRST gallon, then it is regressive, and does NOTHING to control water usage. I have been unable to find out if it is or is not from the first gallon. Further, any tax that is imposed is RARELY ever rescinded and winds up as additional windfall profits to the water company. If this is the case, then hooray for the legislature and Gov. Scott for curtailing this unbridled power.

    Howard J. Larsen

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